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Work Life Balance | Authors: Bram Lecker & Kimberley Sebag


Work Life Balance

Work life balance is the need to equalize the amount of time you spend at work and in your personal life. It is important for happiness, mental health and productivity. As modern society moves lightspeed ahead with technology, the “quiet” space that existed generations ago, during the horse and buggy days, has quickly disappeared. It was normal back then to patiently wait days, weeks or months for a response to a query.

Not so today where we remain electronically connected 24/7. Communicating with any part of the world can occur immediately, via phone, email, text or video. It has blurred the lines between work and private time and given rise to tensions between employers and labour groups. Employers want highly productive, efficient and flexible workers who can perform tasks from anywhere, anytime, on-demand, full time, part-time and on temporary terms. Labour groups, on the other hand, want predictability along with better employment terms and conditions.

Work Life Balance: The Right to Disconnect

In January 2017, the Right to Disconnect became law in France, making headlines across the globe. It is touted as the first of its kind and designed for the digital age to reduce incidents of employee burnout and to protect their personal time. Law makers across the globe, including Canada, are paying attention. It applies to French organizations with more than 50 employees and requires them to establish hours when staff can disconnect from work related electronic communications.

Work life balance is a matter virtually all employees grapple with, but parents and family-member caregivers have the toughest time of all. The demanding nature on both sides of this equation often puts them in the line of fire at work. Children, after all, do not plan their needs around your employer’s requirements. While we are not quite there with forward thinking laws on electronic communication, Ontario employees do receive protection in many other ways. Legally, your employer has limits on how far they can encroach on your personal time and family commitments.

Parents, Caregivers & Work Life Balance

We first took this issue by the horns in 2003, with our case Hilton v. Norampac Inc. Our client, Michael Hilton, worked in progressive positions at Norampac Inc. for fifteen years. His job as a foreman required him to work two weekends each month. In 2000, the company unilaterally added another requirement. They now wanted him on-call every sixth weekend as well, and without additional pay. This put Mr. Hilton in a difficult situation. He had four young children and his wife had just started working weekends. Unlike the rest of his team, he declined the new terms, citing family commitments. Remaining on-call and responding to work request with little notice was untenable for him. In fact, he had turned down a past promotion for exactly this reason.

Mr. Hilton tried to compromise with his employer to preserve his work life balance. He offered to work on-call during the week and was even open to a demotion. His employer refused all his proposals and eventually gave him two days to reconsider his position. As luck would have it, Mr. Hilton’s daughter became ill and had to be taken to the hospital right around their deadline. He did not respond to their ultimatum and they unceremoniously fired him without severance pay.

When Mr. Hilton came to see us, we felt his employer had crossed too many lines. A series of appeals took this case to the Supreme Court of Canada. They condemned the practice of employers making unilateral changes to employment terms. With this ruling, they protected the right every employee has to refuse changes to their employment when it detrimentally impacts their parental obligations.

Canada’s Human Rights

The right to care for family is also recognized by the Canadian Human Rights Act. It prevents your employer from discriminating against you under the grounds of Family Status. In 2013, this is where Denise Seely took a similar grievance she had against her employer, CN Railway.

Ms. Seeley was a conductor for Canadian National Railway. She resided in Jasper, Alberta with her husband and two young children. She was on layoff, accumulating seniority, when CN experienced a severe shortage of employees at its Vancouver terminal. They recalled conductors from the Western Region for coverage. Ms. Seeley was among the reassigned. She was unable to relocate and sent several letters to CN seeking accommodation. Her husband also worked for CN and was often away from home for 12 to 24 hours. This transfer to Vancouver was impossible because of her childcare situation.

Shockingly, instead of accommodating the situation, CN terminated Ms. Seely’s employment. And the perplexing issue was that CN already had a comprehensive accommodation policy, along with a collective bargaining agreement, that would have accommodated Ms. Seely. The Canadian Human Rights Tribunal concluded that CN’s failure to investigate accommodation options constituted discrimination. They reinstated her job and awarded her damages along with awards for pain and suffering.

Employer’s Duty to Accommodate Family Status

Accommodation legislation, in principle, is designed to reach a balance between your needs and that of your employer to operate an effective workplace.  When making a request for family status accommodation, your employer should provide whatever accommodation is necessary, unless it would cause them undue hardship. And the courts set the bar very high for defining this hardship. A declaration of the costs being too high does not legally cut it. They must provide substantial documented evidence to support their statements.

Parents may request accommodation for work life balance on the grounds of family status.  Examples include accommodation with flexible hours, pursuing alternative work arrangements, like job sharing, and taking protected sick leave when circumstances call for it to take care of a sick family member.

Work Life Balance: When to Seek Legal Help

Parents sometimes find themselves in difficult situations when trying to balance their family obligations with a career. For example, new parents frequently require time off to care for sick infants. And they also fall ill more often from viruses their kids bring home from daycare and school. For this, your manager may unnecessarily scrutinize you for not being fully productive. Consequently, they could demote you, subject you to an unreasonable workload or expose you to underhanded harassment, all in the hopes of forcing you to quit. These are classic circumstances of a constructive dismissal.

If you feel that you are being treated unfairly by your employer because of family obligations, contact us. You will require an experienced lawyer to “enlighten” your employer if they:

  • will not give you time off to care for a family member.
  • do not offer you flexibility to take your family member to medical appointments during work hours.
  • deny you a promotion because, as a caregiver, they beleive you are not committed to their work.
  • shun you for requesting flexible hours because your shared custody situation requires it (School bus schedules etc.)
  • refuse to give you a leave of absence from work to care for your same sex partner.

Lecker & Associates have practised employment law for over 35 years, exclusively representing employees.  Unfortunately, we have witnessed too many employees subjected to egregious abuses for being parents and caregivers, simply because they had a limited understanding about the law. If your situation is like any of those described above, call us for a review.  In addition to resolving the matter for you, we will educate your employer about the law, resulting in a better work life balance for everyone at your workplace.

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